5 Estate Planning Documents to Update When Getting a Divorce
What is the Effect of Your Divorce on Your Will?
If you are considering divorce, or beginning the process of getting divorced, you must review your estate plan to make sure it reflects your life change. Keep in mind that it doesn’t matter how far along the divorce is or how long the action has been pending, the law considers you to be legally married until the judge signs the final decree ending the marriage.
If you die or become disabled prior to the final decree of divorce, your estranged spouse may still have legal control over you and your estate, and may be entitled to most, if not all, of your estate. This is probably not what you intend to happen. Through proper estate planning documents, you can provide that someone other than your former spouse will have control over you and your estate, and you can limit your estranged spouse's rights as a beneficiary of your estate.
Divorce and Your Will
If you created a will before you were divorced, the law, in most states, provides that any provision in the will for the benefit of your former spouse is ineffective. In these states, the will is not revoked; it is interpreted as if your ex-spouse had predeceased you. On the other hand, in some states divorce revokes the whole will. In either case, the former spouse has no rights in your estate as a beneficiary, executor or administrator. Keep in mind that in a few states, the will stands and the former spouse may inherit.
The rules of the law apply only to the ex-spouse. If your will makes provisions for the ex-spouse’s children (or more remote issue), or other relatives of your ex-spouse, and is not wholly revoked by the divorce, these provisions of the will still stand. The divorce has no effect on them.
If you made a will before the divorce and indicated in the document that you intended the provisions for your soon to be ex-spouse to be valid after the divorce, then your announced intention overcomes the law.
Divorce and Your Trust
If you die during the divorce and before the final decree, the rule of law excluding your soon-to-be-ex-spouse does not help you. If you will leaves everything to your soon-to-be-ex-spouse, that’s who will get your estate.
Any other estate planning document, such as a trust, will also be interpreted in the same way provided that it is revocable at the time of your death. If you have made a revocable inter-vivos trust, sometimes called a living trust, provisions in this document for your ex-spouse will be invalid. The fact that the trust must be revocable for this rule to apply is important. If you made an irrevocable trust before your divorce, such as an irrevocable life insurance trust or “ILIT”, and your ex-spouse is a beneficiary of that trust, the law will not save you.
The transfer to the trust was made prior to the divorce and the ex-spouse’s property rights were determined at that time. This cannot be changed in any manner since the trust is irrevocable. To avoid unintended results in this scenario, it is important to specify that a divorce will remove the current spouse as a beneficiary and that when used in the documents “wife” or “husband” means whomever you are married to, not a specific individual.
Divorce and Your Power of Attorney (and Guardianship)
If you have signed a power of attorney giving your spouse the authority to act as your agent, in most states this grant of power is revoked when either spouse files an action for divorce. Until the action for divorce is filed, the spouse can act using the power of attorney - this can be a very dangerous power. Note that unlike the will, the provision naming the spouse as a power of attorney is usually revoked when the divorce action is filed, not at the final decree.
When a divorce action is filed, only the appointment of the spouse as agent in the power of attorney is revoked, the whole power of attorney is not revoked so the named successor agent can serve. If the power of attorney includes an appointment of the spouse as guardian, if a court appointed guardian is necessary, filing for divorce does not revoke that appointment. Instead, a court would have to decide if filing for divorce is a good reason not to appoint a spouse as a guardian. When the divorce becomes final, however, the appointment of the ex-spouse as guardian is revoked.
Divorce and Your Living Will
Another issue to think about during a pending divorce is health care issues. Have you remembered to change your living will and medical directive? It is unclear whether filing for divorce, or even being granted a final divorce decree, revokes the designation of a spouse as an agent under your medical directive. Arguably, the agent is the same as an agent under a power of attorney and under the law of most states an agent’s power is terminated when divorce is filed.
If an ex-spouse is designated as a beneficiary on a life insurance policy, annuity contract, pension, profit-sharing plan, or other contractual arrangement providing for payments to the spouse, most state laws provide that any designation which was revocable at the time of death is ineffective and the beneficiary designation is construed as if the ex-spouse had predeceased. If the designation or a separate contract (such as a property settlement agreement) provides that the designation is to remain in effect even after the divorce, then the designation remains effective,
Note that the financial institution involved will not know whether or not there has been a divorce. If the ex-spouse claims the benefit as named beneficiary, most state laws specifically provide that the paying company shall have no liability. The ex-spouse, of course, is liable but as is always the case with financial liability, one can only recover funds if the defendant still has the funds and has not spent them.
If you are considering divorce or are in the process of getting a divorce, it is important to discuss your needs with a trusted estate attorney so that you can guarantee that you and your estate are protected.